In re David L. SEAY, Debtor. David L. Seay, Plaintiff, v. United States of America, Internal Revenue Service, Defendant.

United States Bankruptcy Court, E.D. Arkansas, Little Rock Division.

369 B.R. 423

Bankruptcy No. 4:05-bk-19608E. Adversary No. 4:05-ap-01300.

May 16, 2007.

Neil Deininger, Reba Wingfield & Amy Hall, for Plaintiff/Debtor.

Ann Reid, for the United States.

Richard Cox, Chapter 7 Trustee, U.S. Trustee.

ORDER GRANTING MOTION FOR FEES AND COSTS

AUDREY R. EVANS, Bankruptcy Judge.

On October 31, 2006, the Court entered a Memorandum Opinion and a Final Judgment finding that a 1982 income tax assessment is invalid on the basis of equitable estoppel, that Plaintiff is entitled to a return of all refunds retained by the Internal Revenue Service (" IRS ") and applied to the 1982 tax liability with interest, and that Plaintiff is entitled to attorney fees to the extent allowed by law. The Court directed Plaintiff to subsequently file an application for attorneys' fees and costs under 26 U.S.C. ╖ 7430(c)(4), and Plaintiff filed such application on January 3, 2007, styled as the Motion of Plaintiff for Reimbursement of Administrative and Litigating Costs Incurred by Plaintiff in this Dispute, Including Memorandum of Law in Support (hereinafter referred to as the "Motion for Fees and Costs"). The Defendant then filed the United States' Response in Opposition to Debtor's Application for Attorneys' Fees and Costs (the "Response") on February 7, 2007, and the Plaintiff filed a Reply to United States' Response in Opposition to Debtor's Application for Attorneys' Fees and Costs (the "Reply") on February 21, 2007. The parties have not requested a hearing in this matter, and the Court has determined that a hearing is not necessary to rule on Plaintiff's Motion for Attorneys' Fees and Costs.

APPLICABLE LAW

Section 7430 of the Internal Revenue Code authorizes (subject to certain conditions) the award of reasonable administrative and litigation costs incurred by the prevailing party "[i]n any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title." 26 U.S.C. ╖ 7430(a). This Court has jurisdiction over both the administrative costs incurred in connection with the administrative proceedings before the IRS, and the litigation costs incurred in connection with the court proceeding before the Bankruptcy Court. 26 U.S.C. ╖ 7430(a), (c). To qualify as a prevailing party, the taxpayer must have substantially prevailed with respect to either the amount in controversy, or the most significant issue or set of issues presented, and if an individual, the taxpayer must not have had a net worth in excess of $2 million as of the filing day of the suit. 26 U.S.C. ╖ 7430(c)(4)(A). Several other requirements must be met in order for a taxpayer to qualify for an award under ╖ 7430. First, the taxpayer must have exhausted its available administrative remedies within the Internal Revenue Service. 26 U.S.C. ╖ 7430(b)(1). Second, no award may be made for costs associated with "any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted such proceeding." 26 U.S.C. ╖ 7430(b)(3). Finally, no litigation or administrative costs may be awarded under ╖ 7430 for those fees and costs incurred before a "qualified offer" is made (this limitation is discussed more thoroughly herein) if the United States establishes that its position in the proceeding was "substantially justified." 26 U.S.C. ╖ 7430(c)(4)(B).

ANALYSIS

The United States does not dispute that Plaintiff was the prevailing party in this action; nor does the United States dispute that Plaintiff exhausted his administrative remedies before bringing this action. Further, the United States does not contend that the Plaintiff has unreasonably protracted the proceedings. The United States, however, argues that Plaintiff does not qualify for an award of fees under ╖ 7430 because: (1) Plaintiff has not actually incurred the costs and fees sought by its counsel; (2) with respect to pre-qualified offer expenses, the Government's position was substantially justified; 1 and (3) some of the Plaintiff's administrative and litigation costs are not reasonable. Further, the Government contends that even if an award of attorneys' fees and costs is properly awardable to Plaintiff under the statute, Plaintiff's counsel are not entitled to an hourly rate above that provided by statute. The Government also contends that Plaintiff is not entitled to an award of fees for paralegal's time. The Court will first address the United States' broader arguments as to whether the Plaintiff incurred the costs for which he seeks reimbursement, and if so, at what rate. The Court will then determine whether Plaintiff's administrative or litigation fees and costs may be awarded.

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1. ═ The Plaintiff is treated as the prevailing party for purposes of its pre-qualified offer expenses ( i.e. , those expenses incurred on and after November 4, 2005) under 26 U.S.C. ╖ 7430(c)(4)(E), regardless of whether the United States' position was substantially justified or not.

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I. Were the Fees and Costs Incurred?

The Government contends that Plaintiff has not shown that he has actually incurred any fees or costs. To support this proposition, the Government submitted copies of the Debtor's fee agreements with his counsel, Deininger and Wingfield, P.A. The first fee agreement dated November 1, 2005, provides, in part:

Firm shall keep time records of all time expended in this matter and said time shall be billed at Firm's normal billing rates. However, Client shall not be liable for time expended by Firm over and above the amount of assets available in Client's Chapter 7 estate to pay administrative claims and any amount awarded by the Bankruptcy Court as attorneys' fees for the litigation anticipated hereunder. However, it is anticipated that, as part of the litigation herein, Firm will seek recovery of certain refunds previously offset by the IRS against Client. Any such recovered refunds shall be paid one-half (1/2) to Firm as additional attorneys' fees and one-half to Client. Further, any attorneys' fees awarded administratively or by any court in the litigation anticipated hereunder or otherwise pertaining to any attorneys' fees incurred by Client and his spouse prior to the anticipated Adversary Proceeding with regard to his 1982 federal income tax liability, shall be paid one-half (1/2) to Firm as additional fee [sic] herein and the remaining one-half (1/2) shall be refunded to Client in repayment of prior attorneys' fees paid by Client.

It is anticipated that Firm will make a "qualified offer" of settlement to the IRS (as defined by Internal Revenue Code ╖ 7430(g)) in connection with the litigation contemplated herein. Pursuant to Internal Revenue Code ╖ 7430(g), if Client is successful in the litigation in that the amount of income tax liability is determined to be less than the qualified offer, Client will be entitled to an award of reasonable attorneys' fees incurred after the qualified offer. In addition, Client and his spouse have expended approximately Seventy Thousand Dollars ($70,000) in attorneys' fees since the IRS assessed the 1982 income tax liability against Client. Firm shall seek an award for Client against the IRS for those fees and costs under Internal Revenue Code ╖ 7430.

An Amended Fee Agreement between Debtor and Deininger and Wingfield, P.A. was entered into on April 10, 2006. This fee agreement was mostly identical to the prior fee agreement, with the paragraphs cited above changed as follows (omissions are struck out, and additions are double-underlined):

Firm shall keep time records of all time expended in this matter and said time shall be billed at Firm's normal billing rates.

Client shall be invoiced for said attorneys' fees at regular monthly intervals as the work progresses. It is anticipated that Firm will make a "qualified offer" of settlement to the IRS (as defined by Internal Revenue Code ╖ 7430(g)) in connection with the litigation contemplated herein. Pursuant to Internal Revenue Code ╖ 7430(g), if Client is successful in the litigation in that the amount of income tax liability is determined to be less than the qualified offer, Client will be entitled to an award of reasonable attorneys' fees incurred after the qualified offer. In addition, Client and his spouse have expended approximately Seventy Thousand Dollars ($70,000) in attorneys' fees since the IRS assessed the 1982 income tax liability against Client. Firm shall seek an award for Client against the IRS for those fees and costs under Internal Revenue Code ╖ 7430. Any attorneys fees awarded to the Client in this litigation shall be paid first toward the attorneys' fees incurred by Firm. In the event such award is in excess of the attorneys' fees incurred by Firm, the excess shall be payable to the Client.

The Government asserts that "the mechanism contemplated by the Plaintiff is clear: (I) the attorneys will seek an award of costs; (ii) to the extent of their actual costs, the firm will retain the award; and (iii) the excess will be paid over to the client . . . . ", and the Plaintiff will not be liable for fees unless the Court awards fees. United States' Response, p. 10-11. The Government's response claims that the Eighth Circuit has held that, "[w]here the recovery of fees under a fee-shifting statute is the precondition to the client's ▒obligation' to give those fees to the lawyer, his contingent obligation is not one where he has ▒incurred' attorneys' fees, and there is thus lacking the legal obligation to the firm that is the necessary prerequisite." Id. at p. 11 (citing Sec v. Comserv Corp. , 908 F.2d 1407, 1414 (8th Cir.1990); United States v. 122.00 Acres of Land , 856 F.2d 56 (8th Cir.1988)). The Court has read these two cases, along with the others cited by both Plaintiff and Defendant, and finds that the Eighth Circuit has held no such thing. Although the Eighth Circuit has held that "fees are incurred when there is a legal obligation to pay them," the parties have not provided this Court with a case where the Eighth Circuit has addressed the situation where the client has contracted with an attorney to pay the attorney only if there is an award of fees under a fee-shifting statute. SEC v. Comserv Corp. , 9 08 F.2d at 1413. Rather, in SEC v. Comserv , t he Court found that the prevailing party had not incurred defense costs in an Equal Access to Justice Act (" EAJA ") action (which contains a fee-shifting provision that requires fees and expenses be incurred) because his employer had agreed to pay all his legal fees and expenses. In reaching that result, the Eighth Circuit examined its decision in United States v. 122.00 Acres of Land, supra , i n which the Court found that the party seeking fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act (" URA ") (which contains a fee-shifting provision that requires fees be "actually incurred") was not entitled to such fees because he and his attorney had a contingency fee contract which provided that he would not be liable for fees unless he recovered funds in the lawsuit, and he did not recover anything in the lawsuit because the government abandoned its plans to take his property and the case was dismissed. 908 F.2d at 1414. The Court in SEC v. Comserv went on to observe that the purpose of the fee-shifting statute (to remove the deterrent of legal fees in bringing certain actions) would not be served by an award of fees, since the fees had been paid by a third party (the employer), or its insurer. 908 F.2d at 1415 (discussing the exception to the requirement that legal fees be incurred in order to be eligible for an award under the fee-shifting statute which allows fees to be awarded if an attorney were serving pro bono , citing Cornella v. Schweiker , 728 F.2d 978, 987 (8th Cir.1984)).

Several courts have specifically held that a contingent fee agreement that requires any awarded fees to be paid to the attorney satisfies the requirement that fees or expenses be "incurred" within the meaning of fee-shifting statutes. In Phillips v. General Services Administration , 924 F.2d 1577 (Fed.Cir.1991), the Federal Circuit determined that a fee agreement that requires any awarded fees to be paid to the attorney meant such fees were incurred, even if the client was not liable for fees if there was no such award. Specifically, the Court stated:

As the statute requires, any fee award is made to the "prevailing party," not the attorney. Thus, Phillips' attorney could not directly claim or be entitled to the award. It had to be requested on behalf of the party. With this predicate, we construe the fee arrangement between Phillips and her attorney to mean that if an award of attorney fees is obtained on her behalf she is obligated to turn it over to her attorney. In this sense, Phillips incurs the attorney fees that may be awarded her. On the other hand, if no fee award is made to her, she does not have any obligation to pay any further fees to her attorney from her own resources .

Id. at 1582-1583 (emphasis added). The Phillips court also noted that its decision was consistent with "cases in which EAJA fees have been awarded to parties who have been represented on a pro bono ba sis ." Id. at 1583, n. 4 (citing Cornella v. Schweiker, supra ). The United States Federal Claims Court followed Phillips in Preseault v. United States , a case awarding fees under the URA, in deciding that fees had been incurred where the litigant was required to turn over any fees awarded to its counsel, a nonprofit legal services organization, 2 even though the litigant would not be personally liable for any fees. 52 Fed.Cl. 667, 673 (Fed.Cl.2002). Specifically, the Court stated:

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2. ═ Although the attorney in Preseault v. United States was a nonprofit legal services organization, the Court stated that the case did not present a typical pro bono legal agreement, but that the "agreement between the [organization and litigant] was nothing less than a contingency agreement negotiated at arms-length." 52 Fed.Cl. at 675.

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The fact that these fees are not paid or owed by the litigant, but rather are born initially by a third party like the union in Raney [v. Federal Bureau of Prisons , 2 22 F.3d 927 (Fed.Cir.2000)], or an attorney appearing pro bono , d oes not prevent recovery of those fees under the URA. Defendant's construction of the statute does not qualify the word "incurred"; it changes its meaning to "paid," and defendant's real argument that NELF's fees were not actually incurred is that they were not actually paid by plaintiffs.

Id. at 677. Most recently, the United States Tax Court followed Phillips in holding that contracts between litigants and their counsel which required any award of attorney fees to be paid to counsel, in addition to reimbursing the litigants for what they had already paid, met the "incurred" requirement of ╖ 7430. Hoyt v. Comm'r of Internal Revenue , T.C. Memo. 2006-189, *23-24, 2006 WL 2564109 (2006).

Despite the clear rulings in the cases just discussed, the Government relies on several earlier tax cases, all of which are easily distinguishable. The Government relies heavily on the Tax Court's decision in Grigoraci v. Comm'r of Internal Revenue , 122 T.C. 272, 2004 WL 585801 (2004), that costs could not be awarded to petitioners under ╖ 7430 where the petitioners had failed to persuade the court that they were legally obligated to pay such expenses. The facts of this case were dramatically different from the one at hand in that the expenses in question were clerical in nature arising from work done by the office manager and several secretaries employed by one of the petitioner-husband's accounting firm. The Tax Court noted, "[i]n these circumstances, we are unpersuaded that petitioners are entitled to shift to respondent a portion of what appears to be [accounting firm's] fixed overhead." Id. at 280, n. 12.

In the cases of Kruse v. Comm'r , T.C. Memo 1999-157, 1999 WL 285881, and Republic Plaza Properties Partnership v. Comm'r , T.C. Memo 1997-239, 1997 WL 270516, the Tax Court held that third parties were liable for fees and expenses, and accordingly, such fees and expenses had not been incurred by the litigants and could not be awarded pursuant to ╖ 7430. In Kruse , the petitioners' fees and costs were to be paid by an employee benefit plan; in Republic Plaza Properties Partnership , a third party had paid all litigation costs. In Swanson v. Comm'r , 106 T.C. 76, 1996 WL 62615, the Tax Court found that the petitioners were only liable for $40,000 of fees and costs although they had agreed to allow their law firm to recover any remaining unbilled fees in excess of what the petitioners had paid to the extent petitioners prevailed on their motion for fees and costs. While the notation of such an agreement supports the Government's position in this case, the Tax Court in Swanson did not fully describe the agreement or discuss why the remaining unbilled costs were not "incurred." As such, this Court finds Swanson unpersuasive. Finally, in Frisch v. Comm'r , 87 T.C. No. 53, 1986 WL 22038 (1986), the Tax Court held that an attorney acting pro se could not recover attorneys' fees "for the value of his own services rendered on his own behalf." Id. at 842.

The Eighth Circuit Court of Appeals (nor any other court that this Court is aware of) does not preclude an award of attorneys' fees and costs under a fee-shifting statute such as 26 U.S.C. ╖ 7430 simply because the prevailing party's obligation to pay his or her attorney was contingent upon obtaining such an award. Further, the Federal Circuit, Federal Claims Court, and the Tax Court have held that such an agreement does not preclude an award of fees. See generally Phillips v. General Services Administration , supra ; Preseault v. United States , supra ; Hoyt v. Comm'r of Internal Revenu e, supra . T his Court follows those cases in holding that the contingent fee agreement between Plaintiff and his counsel does not preclude an award of fees and costs on the basis that such fees and costs were not incurred.

II. Premium for Attorneys' Fees.

The Internal Revenue Code's definition of "reasonable litigation costs" includes a cap on the hourly fee that may be awarded for attorneys' services. Specifically, ╖ 7430(c)(1)(B)(iii) provides that reasonable litigation costs include:

reasonable fees paid or incurred for the services of attorneys in connection with the court proceeding, except that such fees shall not be in excess of $125 per hour [as indexed for inflation], unless the court determines that a special factor, such as the limited availability of qualified attorneys for such proceeding, the difficulty of the issues presented in the case, or the local availability of tax expertise, justifies a higher rate.

The IRS annually applies the cost-of-living adjustment required of the base hourly rate, and publishes the calendar-year hourly attorneys' fee rate in a revenue procedure. The allowable rates for legal fees incurred in the period 2000 through 2007 are as follows:

Because Plaintiffs counsel moves for an award of fees in excess of the allowable fee under the statute, the Court must determine if a "special factor" justifying a higher fee applies. The Court makes this determination at this juncture because it is clear that some fees will be awarded, and mathematical computations will be easier once the applicable rates are determined. The Internal Revenue Service Restructuring and Reform Act of 1998 (the "1998 Act") added two of the three examples of special factors outlined in the statute, the "difficulty of the issues presented in the case" factor, and the "local availability of tax expertise" factor. Accordingly, most of the case law interpreting the exception for special factors is focused on the "limited availability of qualified attorneys for such proceeding" factor. Courts have mostly rejected an attorney's legal specialty as qualifying as limiting the available number of qualified attorneys-rather, Courts have found that this exception refers only to attorneys possessing some "unique ▒nonlegal or technical' abilities that contributed to the limited availability of attorneys capable of handling the litigation." Cervin v. Comm'r of Internal Revenue , 200 F.3d 351, 353 (5th Cir.2000) (relying on the United States Supreme Court's decision in Pierce v. Underwood , 487 U.S. 552, 571, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). In Cervin , the court rejected the petitioner's claim that their attorney's expertise in tax law and Texas community property and insurance laws qualified as a special factor warranting a fee in excess of the statutory rate prescribed by ╖ 7430. Id. Other courts have similarly rejected an expertise in tax law or other legal specialties as a special factor. See e.g., Perales v. Casillas , 9 50 F.2d 1066, 1078 (5th Cir.1992) (interpreting Pierce v. Underwood , 487 U.S. 552, 572, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); Urban v. U.S. , 2 006 WL 2037354, *2 (N.D.Ill.2006); Steven N.S. Cheung, Inc. v. U.S. , 2007 WL 174042, *5 (W.D.Wash.2007) (citing cases regarding tax specialty and also holding that expertise in complex litigation does not qualify as a special factor); Abernathy v. U.S. , 158 B.R. 749 (Bankr.N.D.Ill.1993) (holding that expertise in bankruptcy did not qualify as a special factor where bankruptcy issue involved was straightforward). Further, the special factor referring to the local availability of tax expertise has been held not to mean a shortage of qualified tax attorneys who are willing to take on the case at the statutory hourly rate. See Cheung , 2007 WL 174042, *5. In Cheung , the court stated, "[c]ourts have construed [the local availability of tax expertise] to pertain specifically to mean ▒an actual shortage of qualified attorneys, who could handle the case rather than an inability to retain qualified counsel willing to take on the representation at the statutory maximum hourly rate.' " Id. (quoting United States v. Guess , 425 F.Supp.2d 1143, 1155 (S.D.Cal.2006)).

Plaintiff's counsel urges the Court to consider the specialties of each of the three primary attorneys 3 who worked on this case (Amy Hall's expertise in TEFRA 4 proceedings and other complex tax matters, Neil Deininger's expertise in IRS Appeals' procedures, and Reba Wingfield's expertise in bankruptcy and litigation) and the attorneys' combined experience in complex tax litigation. Plaintiff's submitted affidavits of six local tax attorneys attesting to the specialized experience of Plaintiff's counsel, the difficulty of the case, and the reasonableness of both the rates charged by Plaintiff's counsel and the number of hours spent on the case. The affidavits alone do not establish that there is a shortage of qualified tax attorneys to handle the tax issues, or a shortage of qualified bankruptcy attorneys to handle the bankruptcy issues; the affidavits do show that none of the affiants felt capable of taking on this case, which involved a TEFRA proceeding, numerous attempts at resolving the matter with the IRS, and ultimately a bankruptcy case. Despite the narrow interpretation by the courts of the special factor for limited availability of attorneys with tax or legal expertise, the Court finds that in this case, the expertise of these attorneys qualifies as a special factor warranting an enhanced fee. Other attorneys may be qualified in tax law, tax litigation, or bankruptcy, but having heard and decided the case, the Court believes only this set of attorneys (in this geographic area) had the knowledge and skill capable of bringing this suit and this litigation strategy in bankruptcy court. The attorneys had to sort out the conflicting facts and decide which arguments to pursue-to boil the issues down to whether a settlement had been reached or whether the Government should be equitably estopped took a great deal of expertise. Further, while bankruptcy issues were not tried-the dischargeability of the taxes was conceded by the Government-it took a great deal of expertise to even weigh the options between pursuing this in tax court or bankruptcy court. These observations also go to the difficulty of the case-which is a specific example of a special factor which was added to the statute in 1998. The case was very difficult, particularly with respect to the procedural tax issues (such as the interplay between an on going TEFRA lawsuit and a simultaneous audit of one partner, and the procedures for moving forward in the tax arena as compared to bankruptcy), and the attorneys should receive some enhancement above the statutory rate. However, due to the large difference (at least from 2003 on) between the attorneys' rates and the statutory rate, the Court does not award the full fee charged by these attorneys; 5 rather, the fee awarded shall be the statutory rate plus an additional rate depending on the attorney: $75 shall be added for Neil Deininger, $50 shall be added for Reba Wingfield; $30 shall be added for Amy Hall; or the actual rate, whichever is lower. Exhibits A.1 and A.2 to this Order calculate the applicable rates.

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3. ═ The Court notes that the statements submitted as Exhibits 1, 2 and 3 to the Plaintiff's Motion for Fees and Costs included time for attorneys "MN" and "CG." Although the Court is unfamiliar with these individuals, the Court concluded these entries were for attorneys based on the total number of hours computed for attorneys and paralegals on the Tables attached to Plaintiff's motion.

5. ═ The Court notes that the affidavits submitted by local tax attorneys states that for attorneys with 15-30 years of experience in similar complex litigation, the usual hourly rate would range from $200 to $300 per hour.

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III. Administrative Costs (As Identified on Plaintiff's Exhibit 1).

The Plaintiff seeks an award of administrative costs equal to $49,989.00 for the following fees and costs:

The IRS claims these costs are not recoverable because the Government's position was substantially justified with respect to both the Plaintiff's administrative proceedings and the innocent spouse application filed by Plaintiffs wife, Claudia Seay. Further, the Government argues that the fees related to the innocent spouse application filed by Mrs. Seay and those fees and costs related to the Plaintiff's Chapter 7 bankruptcy filing are not recoverable under ╖ 7430 in any event. Finally, the Government objects to an award of Plaintiff's costs for paralegal fees.

A. Was the Government's Position Substantially Justified?

Fees and costs may not be awarded to the taxpayer if "the United States establishes that the position of the United States in the proceeding was substantially justified." 26 U.S.C. ╖ 7430(c)(4)(B). The government's position is substantially justified if it is not unreasonable. The Eighth Circuit Court of Appeals has described substantial justification as follows:

Stated another way, the government's position is not substantially justified where its position is not "clearly reasonable, well founded in law and fact, [or] solid though not necessarily correct." United States v. Estridge , 797 F.2d 1454, 1459 (8th Cir.1986). The government's position may not be reasonable if it failed to adequately investigate its case or placed unwarranted reliance on biased witnesses. Id. at 1457-58. Whether the government's position is not substantially justified is necessarily a case-by-case, facts and circumstances determination. [ In re Testimony ] Arthur Andersen [& Co.] , 832 F.2d [1057] at 1060 [(8th Cir.1987)]; Keasler [v. U.S.] , 766 F.2d [1227] at 1237 n. 22 [(8th Cir.1985)].

Kenagy v. U.S. , 942 F.2d 459, 464 (8th Cir.1991).

The Government contends that its position in this case was substantially justified for the following reasons: (1) agent Bill Laird had no authority to settle the 1982 liability due to the ongoing litigation over Plaintiff's 1982 loss deduction; (2) all the documents concerning the settlement of Plaintiff's taxes for 1995 only refer to the 1995 tax year, not 1982; (3) it is reasonable to assume the IRS would not settle an approximate $240,000 tax liability for $16,000; and (4) equitable estoppel against the government is the exception, and not the rule.

The Court does not find these arguments persuasive, and in fact, finds no grounds in law or fact justifying the Government's position in this case. In fact, the Court finds the Government's actions in this case not only unreasonable but egregious because the IRS steadfastly refused to accept accountability for a mistake it admits it made. The crux of this case was whether the IRS could tax the Plaintiff in 1982 by disallowing a partnership loss and tax the Plaintiff again in 1995 on the Plaintiff's negative capital account in the partnership which resulted from the 1982 loss (assuming it had been allowed)-all parties agreed that it could not, but rather, that the tax for 1995 and the tax for 1982 were mutually exclusive. As this Court stated in its Memorandum Opinion, "[a]ccording to the IRS's theory of the case, it chose to violate its own policies and the express provisions of the Internal Revenue Code by assessing tax on an affected partnership item prior to the conclusion of the Tax Court Litigation, knowing that the 1982 loss had already been denied by the Courts." Nevertheless, the IRS stubbornly refused to take any action to negate the mistake it admits it made, and refused to work with the Plaintiff as he pursued his administrative remedies. As summarized by the Plaintiff in his Motion for Fees and Costs,

. . . the IRS denied the [Plaintiff's] Claim for Abatement, assigned the Offer in Compromise to the person whose actions were complained of, refused to negotiate the Offer in Compromise, and denied the Plaintiff's claim for relief, all without adequate explanation. To compound this situation, the Offer in Compromise was then forwarded to an Appeals Officer who received the case in July 2003, sat on the case for one and one-half years, and closed the case in March 2005 by issuing a summary denial without negotiation, just before his imminent retirement from the Service (Plaintiff's Trial Exhibit 116).

The Court will not engage in speculation about why the Government took this course of action, but having proceeded with no reasonable grounds in law or fact, the Government should be required to pay Plaintiff's attorneys' fees and costs to the extent they are awardable under the statute and reasonable in amount.

The Government maintains that Plaintiff is not entitled to an award of administrative costs attributable to the innocent spouse application filed by Plaintiff's wife, Claudia Seay, because Ms. Seay is not a party to the proceeding before this Court as required by 26 U.S.C. ╖ 7430. The Government asserts that Ms. Seay's only remedy was to file an application with the IRS under ╖ 7430(b)(4), which she did not do. Plaintiff asserts that the costs may properly be awarded under the statute because they would not have been incurred but for the IRS' erroneous assessment. That may be true, but the statute does not provide for an award of all costs connected to a dispute with the IRS, but only those costs incurred by the prevailing party in a proceeding against the IRS. After a careful review of the statute, this Court agrees that Ms. Seay is not a prevailing party in this proceeding, and therefore deducts those hours from the award to Plaintiff for administrative costs incurred prior to November 4, 2005. Although the Government contends that 49 hours of attorney time were expended on Mrs. Seay's innocent spouse application, the Court carefully reviewed the Plaintiff's bills and found only 47.4 totaling $7,756.50 in billed attorneys' fees (including paralegal fees). As adjusted, $7,576.50 will be deducted from Plaintiff's award. The Government does not allege any of the billed costs on Plaintiffs Exhibit 1 were associated with Mrs. Seay's innocent spouse relief. Exhibit B to this Order lists the entries to be deducted.

C. Costs Incurred in Connection with the Chapter 7 Proceeding, Apart from Costs Incurred in the Adversary Proceeding Against the Government.

The Plaintiff requests fees and costs associated with filing a chapter 7 bankruptcy case because those fees would not have been incurred but for the erroneous tax assessment made by the Government. The Plaintiff pleads, "[b]ut for the debt owed to the IRS, the Plaintiff was financially solvent and fully able to pay his just debts in a timely manner, making him clearly ineligible for bankruptcy relief but for the erroneous assessment of 1982 tax." The Government responds that ╖ 7430 only permits an award of "litigation costs . . . paid or incurred for the services of an attorney in connection with [a] court proceeding brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty." The Government contends that the bankruptcy proceeding is not a proceeding against the United States, and therefore, the fees incurred in filing bankruptcy are not awardable under ╖ 7430. While the Plaintiff contends that he filed chapter 7 solely to bring the adversary proceeding against the Government, the Court finds the fees associated with the bankruptcy filing alone may not be awarded under ╖ 7430 because the bankruptcy proceeding itself is not filed against the United States. The Court also notes that Plaintiff received a substantial benefit from filing chapter 7 even if he had not proceeded to file the adversary proceeding-that benefit is the discharge of the (albeit erroneous) tax assessment of $358,627.27. Although the Government calculated 33.5 hours were expended on the Chapter 7 filing, the Court found only 17 hours (including paralegal time) were attributable to the Chapter 7 case. Accordingly, 17 hours totaling $4,122.50 ($3,350.00 as adjusted) in billed attorneys' fees and $212.49 in miscellaneous costs should be deducted from the Plaintiff's fee award. 6 The Government does not explain how it calculated this figure for costs, and the Court cannot tell from the submitted bill that any of the billed costs relate solely to the Debtor's Chapter 7 filing. In fact, the costs listed appear to relate to tax forms, legal research and postage. The filing fee of $209 is not included on this bill, and the Court can only assume that Debtor was required to pay that separately. Accordingly, there will be no deductions for costs associated with Debtor's Chapter 7 filing. Exhibit C to this Order lists the entries to be deducted.

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6. ═ The Court found an additional 4.9 hours of fees billed for the chapter 7 bankruptcy case; those fees are discussed in Part IV below because occurred later in time and were listed on Plaintiff's Exhibit 2.

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D. Paralegal Costs.

The Government objects to most of the paralegal fees for which the Plaintiff seeks reimbursement on the grounds that such fees are mostly for clerical work. Fees for paralegals may be reimbursed under ╖ 7430 only if the work performed is work that would normally be performed by an attorney. Specifically, the Eighth Circuit has ruled:

Work done by paralegals is compensable if it is work that would have been done by an attorney. If such hours were not compensable, then attorneys may be compelled to perform the duties that could otherwise be fulfilled by paralegals, thereby increasing the overall cost of legal services.

Miller v. Alamo , 983 F.2d at 862. Paralegal work that is "purely clerical in nature" is not reimbursable. Id . The Court has reviewed the entries for paralegal time on Plaintiff's Exhibit 1, and does not find any of the entries to be clerical in nature, and therefore makes no deductions to Plaintiff's award for purely clerical paralegal fees.

IV. Litigation Costs (As Identified on Plaintiff's Exhibits 2 & 3).

The Plaintiff seeks an award for the following litigation costs, as outlined on Table II to Plaintiff's Motion for Fees and Costs.

An analysis of these fees and costs are divided into three sections, based on when they were incurred. From July 14, 2005, through the date of the Plaintiff's qualified offer, November 4, 2005, are discussed first. Second, adjustments to the fees and costs incurred between the date of the qualified offer and September 15, 2006, are described. Finally, fees and costs incurred with respect to the Motion for Fees and Costs are analyzed.

A. Litigation Costs Incurred Prior to November 4, 2005.

Having determined that the Government was not substantially justified in its position against Plaintiff, the Plaintiff's fees and costs in preparing for the litigation against the Government are properly awardable as discussed above. Those costs are identified on Plaintiff's Exhibit 2 and span from July 14, 2005, through the date of the qualified offer, November 4, 2005 (all costs incurred after that date are analyzed separately below). The Court has identified 70.2 hours of attorney time attributable to this time period, and no paralegal time. Reducing 4.9 hours for fees associated with the Plaintiff's Chapter 7 bankruptcy filing (see Exhibit C ), and finding no purely clerical entries or otherwise inappropriate entries, the Court finds that the hours included on Plaintiff's Exhibit 2 prior to November 4, 2005, shall be awarded with a deduction of 4.9 hours totaling $1,286.00 as billed, and $958.50 as adjusted.

B. Litigation Costs Incurred in the Adversary Proceeding Against the Government from November 4, 2005, through September 15, 2006.

Plaintiff served his qualified offer on November 4, 2005; accordingly, pursuant to 26 U.S.C. ╖ 7430(c)(4)(E)(I), a party is treated as a prevailing party, "if the liability of the taxpayer pursuant to the judgment in the proceeding (determined without regard to interest) is equal to or less than the liability of the taxpayer which would have been so determined if the United States had accepted a qualified offer of the party . . ." In this case, the Plaintiff's liability was determined to be zero in this proceeding, whereas the Plaintiff offered $100 in his qualified offer. Accordingly, whether the Government's position in this proceeding was substantially justified is irrelevant, and costs may be awarded to Plaintiff so long as they are reasonable. Pursuant to ╖ 7430(c)(4)(E)(iii), only those costs incurred on and after the date of the qualified offer may be awarded under this section.

The IRS objects to the number of hours billed by Plaintiff's counsel in connection with this adversary proceeding as excessive and unreasonable. Specifically, the IRS objects to 26.10 7 hours of attorney time. Of the 26.10 hours, the IRS objects to 16.30 hours that the IRS claims was spent on purely clerical tasks, such as drafting a civil cover sheet, preparing PDF versions of the complaint and another document, filing complaint and civil cover sheet with the Court, drafting an affidavit regarding service of process, and instructing administrative staff regarding file matters, copying, mailing, and other matters. The IRS also objects to 7 hours of attorney time spent on preparing and filing a motion to amend the complaint, which the IRS readily agreed to, and which the Plaintiff never filed. Finally, the IRS objects to 2.8 hours spent on a motion to compel discovery which was never filed in the case. The Government points out that the time charged by Plaintiff's counsel to review the Government's responses to discovery requests was more than adequate to apprise Plaintiff's counsel of the thoroughness and correctness of the responses made.

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7. ═ The Government notes that these hours are out of a total 432.9 hours of attorney time billed between November 4, 2005, and September 15, 2006. The Court calculates only 425.8 hours of attorney time billed between these dates, with 40.6 hours of paralegal time.

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The Court agrees with the Government that some of the time entries totaling 15.3 hours 8 appear to be clerical in nature and therefore not awardable. However, those entries relating directly to the organization of files in preparation for trial, and the preparation of trial notebooks are awardable-only an attorney preparing for trial can know how documents should be organized for trial. Those entries total 8.7 hours, leaving 6.6 hours to be deducted. Those entries are calculated on attached Exhibit D. Further, for the reasons asserted by the Government, the Court will not award fees for 2.8 hours spent on the motion to compel discovery which was not needed or filed. However, the 7 hours attributable to the uncontested Motion to Amend Complaint mostly refer to discovery and deposition issues in addition to the amended complaint, and the time spent solely on the amended complaint appears to be reasonable. Therefore, those time entries are awardable. A total of 9.2 hours of attorney time should be deducted from Plaintiff's litigation fees, as calculated on attached Exhibit D.

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8. ═ The list included in the Government's Response totals 15.3 hours rather than 16.3 hours.

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C. Post-Trial Expenses Regarding Motion for Fees and Expenses.

The parties do not dispute that the fees and costs associated with filing the Motion for Fees and Expenses may be included in a fee award. See generally Caspian Consulting Group, Inc. v. C.I.R. , T.C. Memo 2006-85, 2006 WL 1083443; Miller v. Alamo , 983 F.2d 856 (8th Cir. 1993). The Government, however, objects to the amount of time spent by Plaintiff's counsel in litigating the Motion for Fees and Expenses. The Government calculated that Plaintiff's counsel spent 176 hours on the Motion for Fees and Expenses, excluding time spent discussing settlement with the Government, excluding paralegal fees and excluding time spent extending the deadline to file the Motion for Fees and Expenses. The Plaintiff responds that only 165.8 hours total attorney time was spent on the Motion for Fees and Expenses, and that this total includes time spent discussing settlement with the Government. The Government believes only 80 hours should be awarded in connection with the Motion for Fees and Expenses, whereas the Plaintiff argues the entire amount is reasonable because it is a complex matter and counsel had no prior experience with applications under ╖ 7430. Counsel argues that at the very least, it should not have its time reduced and its fee reduced to the applicable statutory limit. The Court adopts the Plaintiff's position, and accordingly, awards 165.8 hours at the statutory rate of $150 per hour. This adjustment is made on attached Exhibit A.2.

D. Paralegal Fees.

The Court has reviewed the entries on Exhibits 2 and 3 for billed paralegal costs and makes deductions for those fees that are obviously cumulative with time billed by attorneys ( e.g. , conference calls or attending court), and those fees that appear to be purely secretarial or clerical in nature. These deductions are listed on the attached Exhibit E.

CONCLUSION

For the reasons set forth in this Order, the Plaintiff is entitled to award of attorneys' fees and costs for both administrative and litigation cost under 26 U.S.C. ╖ 7430. The table on the following page sets forth the final computation of those fees and costs which are awarded.